Retrials and the Presumption of Innocence

I just don’t get it. A man is presumed innocent. He is put on trial. When the state fails to persuade all members of the jury that the man is guilty, the judge declares a mistrial. How come the judge didn’t just dismiss the case? The state failed to meet its burden of proof; it failed to overcome the presumption of innocence, right?

But Jewu Richardson will almost certainly be tried again.

The 33-year-old New Haven man was shot in the chest by police in the course of a high-speed chase in January 2010. He has since filed a civil suit claiming the police shot him without justification. The police, on the other hand, charged Mr. Richardson with 10-counts of criminal conduct, including assault on a police officer.

The criminal case against Mr. Richardson ended last week with jurors unable to agree about whether he was guilty or not guilty of any of the crimes charged.

Rumor has it the young man was offered a prison sentence of 2½ years, if he would but plead guilty to something. He refused to enter a plea. Hence, the trial.

We give to juries the right to determine whether a person is guilty or not guilty. In the state court system in Connecticut, a person demanding a trial by jury will be judged by six jurors, unless the potential sentence is life imprisonment, in which case the jury will be composed of 12 persons. In order to reach a verdict, a Connecticut jury must be unanimous. In the absence of unanimity, a jury is said to be “hung,” resulting in a mistrial, and giving the state the right to try the case all over again with a different jury.

I’ve never understood the twisted logic that permits the state to try a case again, once it fails to obtain a guilty verdict in a mistried case. This practice of a second, or even a third bite at the defendant’s hide — recall the thrice tried case of Branford’s Eugene Bontatibus for arson — strikes me as yet another way in which we undermine a commitment to the presumption of innocence.

Jurors are told each and every day in our courts that an accused person enjoys the presumption of innocence unless and until the state can overcome the presumption by proof beyond a reasonable doubt. In other words, the default setting in a criminal trial is “not guilty.” If the state can’t persuade a jury of the defendant’s guilt, the presumption of innocence alone is enough to obtain an acquittal.

The state failed to persuade all six of the jurors in Mr. Richardson’s case that he was guilty as charged. Apparently, four of the jurors, all Caucasian, voted during deliberations to convict; the two people of color, in the end, would not vote to convict. The result was a lack of unanimity for the group as a whole. The state failed to meet its burden.

“Jewu Won,” a supporter of the young man chimed once the mistrial was declared.

Not so fast, I say. The state can, and most likely will, try him all over again, unless it offers him a deep discount on a guilty plea in the next round of private plea bargaining. My prediction? The state will offer him a walk out the door if he pleads to a felony. That, at a minimum, will give the police a stone to throw at Mr. Richardson in his civil action against the cop who shot him.

But here’s what I will never understand: The state failed to prove its case in the first trial. Why isn’t the presumption of innocence enough to acquit Mr. Richardson altogether and to end this criminal prosecution once and for all?

The bar on double jeopardy, on prosecuting a person twice for the same offense, prohibits the state from retrying a person once a verdict has been reached. If there is no verdict, as is the case when a jury cannot agree, then a judicial declaration of a mistrial is regarded by the Supreme Court as the sort of “manifest necessity” that results in a relaxing of the bar against a subsequent prosecution. This species of judicial two-step was upheld by the U.S. Supreme Court as recently as 2010.

In other words, if the state fails, it wins — it gets to try a person twice for the same offense.

There are times in which a trial cannot be completed because of events outside the control of anyone in the courtroom: Illness may thin the ranks of a jury; the weather can make a courthouse inaccessible; some extraordinary and unforeseen event may make it impossible to complete the presentation of evidence. But when a case has been completed, tried, and submitted to a jury, and the jury cannot agree, there is no manifest necessity requiring a second trial.

Retrials after the state fails to meet its burden of proving its case are offensive. Do we value the presumption of innocence so little?

Why did the race of jurors apparently matter in this case?

Perhaps because the case involved the police use of deadly force against a young black man. Perhaps white jurors were less disturbed by evidence that the police behaved recklessly on the night Mr. Richardson was shot, ignoring commands to call off the chase. The mean streets of the city require a strong hand, don’t they?

And perhaps the people of color knew a thing or two about the streets. Perhaps they refused to vote to convict because they wanted to send a message to the police: New Haven isn’t a plantation. Cops aren’t plantation masters, and young black men aren’t escaped slaves.

Jewu Richardson was lucky to have had two people of color on his jury. He might not be so lucky in the next trial, a trial that will make a mockery of the presumption of innocence.

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.